Expression in movies, plays, books, music, and video games hangs in the balance.

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Electronic Arts is making good on its year-old promise that it would fight to protect its stated First Amendment right to produce one of the world's most popular video games, Madden NFL, while using the likenesses of pro players without their permission.

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The video game maker has now rushed from the virtual gridiron to the US Supreme Court, where EA claims it is being punished for producing a game that looks too real. Electronic Arts is asking the justices to review a federal appellate court decision from last year that found EA cannot claim that the use of the players' images were "incidental" and covered by the First Amendment.

"We hold EA's use of the former players' likenesses is not incidental because it is central to EA's main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams," Judge Raymond Fisher wrote (PDF) for the 9th US Circuit Court of Appeals. The same San Francisco-based federal appeals court in 2013 sided with NCAA college football players in their lawsuit against EA, a ruling that resulted in a $40 million settlement.

After the latest appellate court setback, the California-based gaming company vowed to appeal the NFL ruling. "We believe in the First Amendment right to create expressive works—in any form—that relate to real-life people and events, and will seek further court review to protect it," the company said.

The appeal to the Supreme Court is attracting widespread interest from academics, the Electronic Frontier Foundation, and others. Among other things, the case is a collision of right-of-publicity claims against today's technology that allows for "too realistic" portrayals of people. At least that's how EA portrays the dispute.

"The expressive work at issue in this case is Petitioner’s professional football video game, Madden NFL, which was alleged to include realistic depictions of Respondents, former NFL players," EA attorney Paul Smith told the Justices in the game maker's petition. (PDF) "The Ninth Circuit held that the First Amendment offered no defense to Respondents’ right-of-publicity claim, because the game’s depiction of Respondents was too realistic: it showed Respondents engaged in the same activity—professional football—in which they had gained their fame."

Smith added:

According to the Ninth Circuit, the depiction of a person's image or likeness in an expressive work enjoys First Amendment protection against a right-of-publicity claim only if the depiction sufficiently alters or "transforms" the plaintiff’s image or likeness. That rule is constitutionally perverse: it affords First Amendment protection only to fanciful or distorted portrayals, not accurate or realistic ones. The rule also chills expression, both because it is hard to predict what a court will decide is sufficiently "transformative," and because such an inquiry inevitably requires a court to make a subjective judgment about whether a depiction is "artistic," thus warranting protection, or "literal," and thus subject to liability.

The right of publicity was first recognized in 1953 in an appeals court case about professional baseball cards. The claim is most often invoked by celebrities and professional athletes. According to a 1996 lower court decision, the right of publicity gives people an economic right in their names and likenesses, so they may “profit from the full commercial value of their identities.” EA says the last time the Supreme Court ruled into the matter was in 1977, when the justices ruled that a right-of-publicity claim prevailed over a news broadcaster's First Amendment claim to be able to broadcast an entertainer's entire human cannonball act. The justices said the broadcast posed a "substantial threat to the economic value of that performance."

Lawyers for players suing the EA contend that the players should prevail under California's right-of-publicity laws. They urged (PDF) the justices to deny weighing into the case and to avoid the First Amendment issues EA has raised because "there is no evidence that this, or any other, right-of-publicity decision has chilled the exercise of expressive rights."

However, a group of law professors in a friend-of-the-court filing with the justices said the Supreme Court should take the case because, among other things, the lower courts "are all over the map" on the issue.

"Such lack of uniformity profoundly endangers free speech, and the creative industries that depend on the First Amendment’s guarantees," Jennifer Rothman, a Loyola Law School scholar, and Eugene Volokh, a University of California, Los Angeles legal scholar, wrote the court on behalf of 20 intellectual property scholars. "This state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred."

The law professors back up their assertions that the law is all over the map on the right-of-publicity issue. They provide several examples. Among them, they include:

Or say you want to create a computer sports game that includes players based on real athletes. The Eighth Circuit said this is just fine, when athletes’ names and statistics were used in an online fantasy sports game. C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). The Third and Ninth Circuits said no, when athletes’ general body types, team affiliations, and player numbers were used in sports video games. But the First Amendment draws no distinctions between fantasy sports games and video sports games.

Or say you want to make cards or prints containing a famous person’s picture, coupled with additional material. The Sixth Circuit said this was protected by the First Amendment, when an artist sold prints depicting Tiger Woods, with some other golfers in the background. ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003). The Ninth Circuit took a different view when a card company sold greeting cards depicting Paris Hilton together with a joke playing off her television persona. Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009). Yet there is no First Amendment line between cards and prints, or between juxtaposing sports celebrities with each other and juxtaposing a TV celebrity with jokes about her.

Electronic Arts' petition is pending before the Supreme Court. The justices are expected to announce soon whether they will hear EA's petition.

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David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets